Canada: Associate Chief Justice Amends Province-Wide COVID-19 Injunction Order

On May 6, 2021, the Associate Chief Justice of Alberta (ACJ) issued an ex parte (without notice to any adverse party) injunction Order (Ex Parte Order) relating to the enforcement of COVID-19 restrictions. In a further return application heard on notice conducted May 13, 2021, the Ex Parte Order was upheld, but with important amendments as described below. 

The Ex Parte Order arose from Alberta Health Services (AHS) attempting to enforce a series of orders issued by Alberta's Chief Medical Officer of Health (CMOH Orders) against certain individuals and businesses.

Specifically, it was alleged that a business, operating as the Whistle Stop Café in Mirror, Alberta, had ignored multiple attempts by AHS to enforce CMOH Orders and had otherwise engaged in promoting large-scale protests against COVID-19 restrictions. In addition, it was alleged that AHS also became aware of an additional large-scale event that claimed to be promoting a similar protest against COVID-19 restrictions near Innisfail, Alberta (collectively, the Whistle Stop and Innisfail Activities). AHS presented evidence that those past and threatened events were being undertaken in defiance of the existing CMOH Orders.

AHS sought court assistance to enforce the existing and any future CMOH Orders claimed to be based upon the court's general jurisdiction under the Alberta Judicature Act, the ability to grant an enforcement Order under section 66.2 of the Alberta Public Health Act (Act) and the ability under the common law to grant a quia timet injunction to prevent imminent harm from occurring.

Specifically, AHS sought injunctive relief to enjoin the organizing, promoting or attending of any "Illegal Public Gathering", being any "public place" or "private space" as defined in the Act which did not comply with the requirements of any current CMOH Orders including those related to masking requirements, social distancing and attendance limits.

The Ex Parte Order restrained not only the named individual Respondents, but any other person acting under their instructions or in concert with them. More importantly, it restrained persons who were acting "independently to like effect". Those additional words significantly broadened the scope and nature of the Ex Parte Order to include non-parties who were claimed to be engaging in such Illegal Public Gatherings unrelated to the Whistle Stop and Innisfail Activities.

The broad nature of the Ex Parte  Order was relied upon by a number of police organizations, in public statements in which they referred to the Ex Parte Order as being an additional tool of COVID-19 enforcement measures. The Ex Parte Order allows any member of any police service in Alberta to use reasonable force in arresting and removing any person who had notice of the Ex Parte Order and whom the police had reasonable and probable grounds to believe was contravening it. Upon arresting any person, law enforcement officers have the discretion to detain any such persons until they can be dealt with in accordance with the Ex Parte Order, which includes bringing the claimed offending party before a Justice of a Court of Queen's Bench to show cause as to why there should be no finding of civil contempt.

It is trite law that an injunction, like any other order of the court, only binds the actual parties to the action commenced. That principle has been recognized in the common law for at least a century (see for example: Brydges v Brydges [1909] P. 187 (CA)).

In addition, the use of injunctions against persons unknown through the use of overly broad Jane Doe and John Doe provisions has been subject to much judicial and other criticism. Those provisions can often be fraught with risks particularly, as here, when the action of unidentified Jane Does and John Does are completely unrelated to the Whistle Stop and Innisfail Activities. Based upon the previous wording of the Ex Parte Order, it had application not only to those specific events referred to by AHS, but any other claimed "Illegal Public Gathering", including, for example, family picnics or other gatherings, which were in claimed violation of CMOH Orders.

Upon the return application of the Ex Parte Order heard on May 13, 2021, an applicant sought to remove those impugned words, which was consented to by AHS and allowed by the ACJ. As a result, the amended Ex Parte Order no longer contains that broad language and is restricted to the named respondents and those acting under their instructions or in concert with them. While Albertans are still subject to fines and penalties under existing legislation, including for breaching CMOH Orders in force, they are no longer subject to the jeopardy of being arrested and found to be in contempt of Court for breaching the Ex Parte  Order, unless they are acting in concert or under the instructions of the named respondents.

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